Remorse in the Rehabilitation Context

In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance:

Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted?

The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context.  Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining).

In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context.

Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to rehabilitation and the likelihood of reoffending, and that adjudicators can assume that where a court issues a “beyond a reasonable doubt” conviction that the events arose.

This was not completely satisfactory answer, especially in light of recently, well publicized incidents of how plea bargaining and biased systems work in certain jurisdiction.

The Federal Court of Appeal took the matter even further.

It found that while a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence, the presumption of innocence does not exist in immigration proceedings.  Indeed, the Court added that where the civil inquiry is conducted after the criminal proceedings are completed, it is difficult to see how the inquiry could have any bearing whatsoever on the presumption of innocence.

As such, and as frustrating as it may be for people who maintain their innocence, it will be open to visa officers to determine that a person maintaining their innocence for a crime that they were convicted of lacks remorse, which would be a very negative factor to showing that they were rehabilitated and admissible to Canada.


Question & Answer – Location of Rehab Application (IR-09)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada (“CIC”) regarding criminal rehabilitation applications.  Criminal rehabilitation applications are the process through which certain criminally inadmissible individuals can apply to become admissible to Canada, and resolve their inadmissibility.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal CIC question and answer through an Access to Information Act request the (“ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  Please e-mail me if you want a copy of the original question and answer contained in the ATI.

Question – May 20, 2013

Dear Madam, Sir,

My client is a foreign national who filed a PR application based on the spousal category from outside Canada (i.e. in CPC Mississauga). He also needs an Approval for Rehabilitation, however, and is currently temporarily in Canada on a TRP.

At the Immigration Summit last November in Toronto, I heard a GIC representative suggest that the PR sponsorship and the Rehab should be submitted together to CPC Mississauga. Therefore, that is what I did for my client. However, CPC Mississauga returned the Rehab application, stating that I need to file it in the correct visa office.

Can you please advise where the Rehab needs to be filed? Since I plan to renew my client’s TRP through Vegreville, should I file the Rehab there at the same time?

Thank you for your guidance.

Answer – May 24, 2013

Good day and thank you for your question.

Rehabilitation applications can be sent to regional Citizenship and Immigration Canada (CIC) offices if the client is in Canada or to an overseas visa office, where the client is residing.

Unfortunately, we cannot provide you with specific details on the location of the offices as we don’t have information about the location of the client.

We recommend that you communicate with the call centre for CIC for further clarifications and details. You may reach the call centre by calling 1-888-242-2100.

That’s not really much of an answer from CIC, and it’s probably because they’re unsure why CPC-M returned the rehabilitation application instead of forwarding it to the visa post with the rest of the immigration application.